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Laxman Shivshankar Kumbhar Vs. Saraswati and anr. - Court Judgment

LegalCrystal Citation
SubjectProperty
CourtMumbai High Court
Decided On
Case NumberAppeal No. 141 of 1955
Judge
Reported inAIR1959Bom125; (1958)60BOMLR382; ILR1958Bom869
ActsCode of Civil Procedure (CPC), 1908 - Sections 11 and 13 - Order 32, Rule 4
AppellantLaxman Shivshankar Kumbhar
RespondentSaraswati and anr.
Appellant AdvocateSharad Rediz, Adv. for ;Y.V. Chandrachud, Adv.
Respondent AdvocateT.N. Walawalkar, Adv.
Excerpt:
civil procedure code (act v of 1908), section 11 - res judicata--issue in previous litigation whether finally decided or not, how to be determined--test for determining such question.;one of the tests to be applied for determining the question, for the purposes of section 11 of the civil procedure code, 1908, whether an issue in a previous litigation had been finally decided or not, is to find out whether the court which adjudged the issue considered the issue to be material and essential for reaching the final conclusion.;peary mohun mukerjee v. ambica churn bandopadhya (1897) i.l.r. 24 cal. 900, midnapur zamindary v. naresh: narayan roy (1924) 26 bom. l.r. 651, p.c. and dinkar v. anant (1928) 30 bom. l.r. 902 referred to. - - 2. this appeal raises a short but interesting question.....1. this is an appeal from the order, dated 14-7-1955, passed by the learned district judge, sholapur, in appeal no. 178 of 1954, by which he allowed the appeal and remanded the suite no. 48 of 1952 to the court of the learned civil judge (junior division), akalkot, for disposal in accordance with law.2. this appeal raises a short but interesting question about the law of res judicata.3. the respondent no. 1, saraswati, was the plaintiff in the trial court. she instituted the aforesaid suit no. 48/52 for a declaration that she was the sole owner of the suit property and for an injunction, restraining the defendants from interfering with her possession, or, in the alternative, for possession of the suit property. the allegation was that the suit property belonged to saraswati's full brother.....
Judgment:

1. This is an appeal from the order, dated 14-7-1955, passed by the learned District Judge, Sholapur, in appeal No. 178 of 1954, by which he allowed the appeal and remanded the suite No. 48 of 1952 to the court of the learned Civil Judge (Junior Division), Akalkot, for disposal in accordance with law.

2. This appeal raises a short but interesting question about the law of res judicata.

3. The respondent No. 1, Saraswati, was the plaintiff in the trial Court. she instituted the aforesaid suit No. 48/52 for a declaration that she was the sole owner of the suit property and for an injunction, restraining the defendants from interfering with her possession, or, in the alternative, for possession of the suit property. The allegation was that the suit property belonged to Saraswati's full brother Malkappa's death in 1943, the suit property devolved upon Saraswati's mother Ambawwa; that Ambawwa re-married in 1944; and that, on her remarriage, the property devolved upon the plaintiff Saraswati, and, therefore, she had become the owner of the suit property on the remarriage of Ambawwa. Defendant No. 2 in the trial Court is the appellant in this Court. His mother Bhangarevva was the defendant No.1 the trial Court. Both these persons resisted the claim of the plaintiff Saraswati. Saraswati's father was one Chanbasappa. The latter was the brother of Shivshankar, the father of defendant No. 2 and the husband of defendant No. 1. The defence of these two defendants was that the property in suit was the joint family property of Chanbasappa and Shivshankar; that Chanbasappa died in 1941 in jointness with Shivshankar; and that, on the death of Chanbasappa, the property became the joint family property of Shivshankar and the defendant No. 2; and that, on the death of Shivshankar in 1946, Laxman, the defendant No. 2, alone became the sole owner of the suit property. From the aforesaid contentions, it is quite clear that one of the main issues to be tried in the trial Court was whether Chanbasappa died in jointness with his brother Shivshankar. The contention of the defendants was that this particular issue was res judicata by virtue of a decision arrived at in Civil Suit No. 54 of 1950. That suit was brought by the plaintiff Saraswati and her step-sister Parvati as co-plaintiffs. It is not disputed that the aforesaid suit No. 54/50 was brought by the aforesaid two sisters Saraswati and Parvati for the same reliefs which have been claimed by the plaintiff Saraswati in the present litigation, and that the aforesaid suit was in respect of the same property which is in dispute in the present suit. Both the defendants were parties to the previous suit No. 54/50. The defendants resisted the claim of Saraswati and her step-sister Parvati in suit No. 54/50 on two grounds. The first ground was that, even if the suit property belonged to Chanbasappa the two sisters Saraswati and Parvati were not the heirs of Malkappa. The contention was that, on the re-marriage of Ambawwa, the mother of Parvati, the property devolved upon one Neelavva, who was the mother of Chanbasappa. It is not disputed that on the date on which the aforesaid suit No. 54/50 was filed, this Neelavva was alive. The contention of the aforesaid two defendants in suit No. 54/50, therefore, was that Neelavva, the grand mother of Malkappa, was a preferential heir to Saraswati and Parvati, the two sisters of Malkappa. The second defence was the same as the defence which has been put forward by the defendants in the present litigation, that defence being that the property was the joint family property of the two brothers Chanbasappa and Shivshankar and the on the death of Chanbasappa and Malkappa, the suit property had devolved upon Shivshankar and defendant No. 2 by right of survivorship. The suit No. 54/50 was decided against Saraswati and Parvati. Several issues were raised in that suit, three of which were as follows:

'(1) Do the plaintiffs prove that the suit lands were the separate properties of the deceased Chanbasappa when he died?

(2) Do the plaintiffs prove that they are heirs of the deceased Malkappa son of Chanbasappa as alleged? and

(3) Whether the plaintiff's suit is not maintainable for reasons stated in paragraph 3 of the defendants' written statement?

The trial Court decided that chanbasappa was joint with Shivshankar on the date of his death and, consequently, the suit lands were not separate properties of Chanbasappa. It also came to the conclusion that Neelavva was the preferential heir of Malkappa, and, consequently, Saraswati and Parvati were not the heirs of Chanbasappa, and that the suit was not maintainable because of the existence of Neelavva. The contention of the two defendants in the present suit, therefore, was that, in suit No. 54/50, the trial Court having reached the conclusion that Chanbasappa was joint with Shivshankar, and that the suit property was not the private property of Chanbasappa, the mater is concluded by the principle of res judicata. I may mention that Saraswati and Parvati acquiesced in the aforesaid decision given by the trial Court in Suit No. 54/50, and they did not prefer an appeal from the decision arrived at in that suit. The question for consideration, therefore, is whether the aforesaid point in issue between the parties, namely, the character which Chanbasappa occupied vis a vis the suit property is re judicata by virtue of the decision arrived at in suit No. 54/50. The trial Court in this litigation reached a conclusion favourable to the defendants. Consequently, it dismissed the suit of Saraswati on that ground. Saraswati went in appeal to the District Court. The learned District Judge took a different view. He came to the conclusion that the matter was not res judicata and, consequently, he set aside the decree of the learned trial Judge, and remanded the suit for trial on merits.

4. The question has got to be decided with reference to Section 11 of the Civil Procedure Code. It is not disputed by the learned advocate for the plaintiff that except the ingredient, presently to be mentioned, all the other ingredients, which are necessary for the application of Section 11 are present in the present case. One of the ingredients which is necessary to be established in order that a matter may be res judicata, is that the matter in issue in the second suit must have been directly and substantially in issue in the previous suit. Another ingredient, which is necessary, is that the matter must have been heard and finally decided in the previous suit.

It is not disputed before me by the learned advocate for the plaintiff Saraswati that the issue regrading the fact whether Chanbasappa was joint with Shivshankar and the character of the suit property was directly and substantially in issue in the previous litigation. It is also not disputed that that particular issue was heard and decided in the previous litigation. but the point which is urged is that, although the matte was heard and decided, it was not finally decided in the previous litigation. Therefore, the question for consideration is whether the aforesaid issue No. 1 in the previous litigation was finally decided in that litigation; in other words, whether the finding which was arrived at in the previous litigation on issue No. 1 was a final decision.

5. Several authorities were cited at the Bar. It is not necessary for me to examine all the authorities which have been cited on this point. From the aforesaid facts, it is quite clear that the question has not to be decided with reference to the case of a plaintiff whose suit has been dismissed and against whom finding of more than one matter has been given in the previous litigation. The contention of the learned advocate for the plaintiff is that the decision which was arrived at in that litigation by the learned trial Judge about the heirship of the plaintiff Saraswati and the maintainability of the suit was a decision which was finally given in that suit, but that the finding which was recorded on issue No. 1 was not a final decision. It was contended that the learned trial Judge in suit No. 54/50 having arrived at the conclusion that the plaintiff was not an heir of Chanbasappa, and that the existence of Neelavva debarred her from claiming as the heir of Malkpappa, it was not necessary for the Court in the previous litigation to decide the further point as to the character of the property and the point as to whether Chanbasappa and Shivshankar were joint or not. It was urged that the test of finality of decision was whether the issue, which had been decided in the previous litigation, was an issue which was material for reaching a final conclusion and for granting a decree in favour of the plaintiff or dismissing the suit of the plaintiff.

6. The learned appellate Judge has come to the conclusion that the issue regarding the heirship of Saraswati and the existence of Neelavva was the main issue on which a final decision was given in the previous litigation, and, consequently, the decision given by the trial Court as regards the character of the property and the statues of Chanbasappa was an incidental finding and was not necessary for arriving at the final decision in the previous litigation. In my opinion, in so far as the learned appellate Judge came to the conclusion that the issue was not a material issue and that the finding was incidental, the conclusion cannot be supported. As already stated by me, there is no doubt that the issue regarding the status of Chanbasappa vis a vis the property in suit was one of the material issues which had to be tried by the trial Court in suit No. 54/50. The main question for consideration is whether the finding on that issue was a final decision or not.

7. Of all the authorities which were cited before me, the authority which is on all fours with the facts of the present case is the ruling reported in Peary Mohun Mukherjee v. Ambica Churn Bandopadhya, ILR Cal 900. In that case, a suit was brought by A against C for damages for not removing certain offensive matter from land. That suit was resisted by C on two grounds: The first ground was that the suit was not maintainable because a notice, as required by a certain Bengal Statute, was not given, and the second ground was that C was not bound to remove the fifth from the plaintiff's property. The trial Court reached the conclusion that the suit was not maintainable because the requisite notice was not given. The trial Court did not stop there. It proceeded further to decide the question about the liability of the defendant C to remove the filth from the plaintiff's property. The Court reached an adverse conclusion against the plaintiff, and held that the defendant was not bound to remove the offensive matters from the plaintiff's land. On these two grounds, the suit of the plaintiff was dismissed. The plaintiff subsequently brought another suit against the same defendant and claimed the same relief as in the previous suit. The defendant C again resisted the suit on the merits on the ground that he was not liable to remove the filth from the plaintiff's property. The defendant contended that the latter point was resjudicate between the parties by virtue of the decision arrived at in the previous suit. The decision of the Calcutta High Court was that the matter was re judicata. The principal judgment was delivered by Banerjee J., and the reasoning in support of the decision is to be found at pages 905-906.' The relevant passage is as follows:

'The judgment in the former suit, which is here made the basis of the plea of re judicata, determines each of the two questions raised, namely, the question of notice and that of the defendant's liability against the plaintiff; and the question of the defendant's liability was raised as directly and substantially in the former suit as it is in this. So that it cannot be said, either that the decision in the former suit upon the question of the defendant's liability was superseded by the decree by reason of the decree being in spite of that decision, or that the question was not a direct and substantial question in the case. If the question of notice had been found for the plaintiff, the question of the defendant's liability would clearly have been a direct and substantial question in the case. Can it then be said that it ceased to be so by reason of the decision upon the question of notice which came to be considered prior to the question as being prior in point of logical order? Having regard to the language of explanation II of Section 13, quoted above, which makes any matter which might or ought to have been made ground of attack or defence come within the description of matter directly and substantially in issue, I find it very difficult to say that this question should be answered in the affirmative. It may no doubt be argued that as the plaintiff could not have taken advantage of any favourable finding in the former judgment on the question of the defendant's liability by reason of the decree being in spite of such finding, he ought not to be held bound by any unfavourable finding on that question. But the answer to that argument is this, that the plaintiff might well have avoided the effect of an adverse finding on the question of liability by asking the Court to determine first the question of liability if the question of notice was found against him. If instead of doing that, the plaintiff led the Court and his adversary to go into the whole question of the liability of the defendant, presumably at considerable expense of time to both it is too late now for him to complain of the result; and we should not be keeping in view the reason for the rule of res judicata which is to give finality to litigation, and to prevent any one from being twicevexed for the same matter, if we were to hold that the decision in the former suit does not operate as res judicata.'

Therefore, the main ground on which the Calcutta High Court reached the aforesaid conclusion was that, in the previous litigation, the plaintiff had invited the Court to give a decision on the aforesaid point in issue. The assumption in the aforesaid ruling is that a litigant is entitled to invite a Court to decide matters in issue piecemeal. It is difficult to splice the aforesaid reasoning with the practice which is prevailing in the State of Bombay. This Court has always taken the view that the trial Court, as far as possible, should decide all the issues, which are material to be decided, and invariably should not decide a suit on preliminary points. This practice is followed in order that a litigation may not become protracted if the higher Court takes a different view regarding a preliminary point which may have arisen before the trial Court. Moreover, if a litigant were to ask a trial Court to decide an issue as a preliminary issue, or if he were to lay down the order, in which issues should be tried and found I doubt very much, whether the trial Court would ever accede to the request. Therefore, so far as the trial Court is concerned, in my opinion, it cannot reasonably be stated that the litigant had the power, even if the had the will, to invite the Court to give decisions on particular issues only and in a particular order. Under the aforesaid circumstances, in my opinion, the aforesaid test is not a proper and just test to be applied for the purpose of determining as the whether an issue has been finally decided or not. Another case which is relevant is the Privy Council case reported in Midnapur Zamindary Co. Ltd. v. Naresh Narayan Roy, 26 Bom LR 651: AIR 1924 PC 144. In this case, in a suit, instituted in 1891, in the Court of the Subordinate Judge, Nadia, (No. 6 of 1891), the plaintiff's mother, in 1899, obtained a decree for possession of certain Chur lands against Robert Watson and Co. predecessors in interest of the Midnapur Zamindary Co. Ltd. Robert Watson and co., thereupon appealed to the High Court contending, inter alia, that the subordinate Judge, having held that it was necessary to enquire whether they had jotedari rights in the lands in suit, had erred in decreeing possession in favour of the plaintiff; that they the appellants had jotedari rights and could not be evicted without their tenancy being determined in the manner prescribed by law. The High Court dismissed the appeal, and confirmed the decree of the Subordinate Jude, holding that Robert Watson and Co. had no such jotedari rights. In execution of the decree, the Court delivered possession to the plaintiff. Subsequently, the plaintiff sued the Midanapur Zamindary Co., the successor in title of Robert Watson and Co., the successor in title of Robert Watson and Co., for partition, ejectment and other incidental reliefs in respect of the same land. One of the contentions of the defendants was that the judgment of the Court in Suit NO. 6 of 1891, inasmuch as it bore on a question which was necessary or proper for trial in that action, was note res judicata precluding the defendants from pleading the existence of jotedari rights in the land. It appears that, in the trial Court in suit No. 6 of 1891, the plaintiff's pleader had, on 28-12-1893, made a statement to the effect that the plaintiff claimed only a right to the settlement of the disputed land and no other right. On the same day, the defendants' pleader also made a statement, and asserted that, in any event, has possession could not be given because the defendants had jotedari rights in the land. As a result of the statement made by the plaintiff's pleader, the learned Judge did not decide the issue regarding the jotedari rights claimed by the defendants. The learned Judge stated: 'The plaintiffs do not ask for khas possession. Hence it is not necessary to enquiry whether the defendants have a jotedari right in the lands.' In spite of the aforesaid view of the learned Judge, Robert Watson and Co. preferred an appeal and claimed that the jotedari rights, which they were claiming, should be decided in the appeal. The appellate Court, therefore, considered the question about the jotedari rights and came to the conclusion that there was no evidence in support of jotedari rights claimed by the defendants. The appellate Court drew up a decree,but did not incorporate the aforesaid decision in the decree. The appellate Court confirmed the first Court's decree. On the aforesaid facts, it was contended before the Calcutta High Court, that the decision regarding the jotedari rights which the defendants had claimed was re judicata. The defendants contended that this was not so in view of the decision of the Subordinate Judge that it was not necessary to enquire whether the defendants had jotedari rights in the lands or not. The Calcutta High Court's judgment, which has been reproduced by Their Lordships of the Privy Council and approved, has dealt with this particular point in the paragraph which has been reproduced at page 660 of the aforesaid report (Bom LR): (at p. 148 of AIR). The ratio decidendi is that the defendants, having invited the decision of the High Court, on the issue regarding the jotedari rights of the defendants, the matter must be taken to have been directly and substantially in issue and the decision must be said to be a decision which was finally reached by the Court. The Calcutta High Court expressed itself as follows:

'Now, had the matter rested where the Subordinate Judge left it, no such question as we have to discuss would have arisen. Whether the suit might and should have been properly determined without entering into the question of the tenancy right as the plaintiff apparently wished to do, we need not now enquire. For, in fact (as we have seen), the present appellants directly insisted on the point being tried, and alleged that the First Court should have done so. It was contended before us that whether the appellants might have done in this respect, the issue in fact was not a necessary or proper on to be tried in that suit, and that if is open to us to say so. But we must see first whether this Court adjudged otherwise, that is, whether this Court having the question before its mind decided that the issue did arise. If so, that decision would be as much res judicata as the final determination of the issue on the merits. If we are of opinion that the Court did so decide, we are not concerned to see whether it did so rightly or not, and indeed cannot do so.'

Therefore, the ratio decidendi of the aforesaid case was that he test which is to be applied is to see whether the Court, which adjudged the issue, considered that the issue was a material and essential issue and whether it determined the particular issue finally. On the facts of the aforesaid case, having regard to the fact that the defendants had invited the Appellate Court to decide the issue regarding the jotedari rights. Their Lordships came to the conclusion that the matter was not only directly and substantially in issue, but that it was also finally decided. This subject also appears to have been considered in a ruling of our High Court reported in Dinkar Raoji Sinkar v. Anant Ganesh Sagwekar, 30 Bom LR 902: AIR 1928 Bom 349. In this case, the plaintiffs were the alienees of a mortgagor. They first sued to redeem the mortgage. That suit was defeated by the mortgagee on the main issue that the plaintiff's sale-deed was hollow and fraudulent. The suit was also resisted by the mortgagee on the ground that the plaintiffs were not agriculturists. That point was also decided by the Court against the plaintiffs in the first litigation. Subsequently, a second suit for redemption was brought by the plaintiffs. The defendant raised a contention that the issue regarding the hollowness of the sale-deed which the plaintiffs had taken from the mortgagee was re judicata between the parties. The answer of the plaintiffs was the having regard to the decision reached by the previous Courts, that the plaintiffs were not agriculturists, the aforesaid issue regarding the hollowness of the ale transaction could not be said to have been finally decided. mr. Justice Patkar held that the matter was res judicata. The basis of his decision is to be found in the following passage (page 905 of Bom LR): (at p. 350 of AIR).

'If the previous suit had been dismissed principally on the ground that it was premature, it could have been said that the decision on the other points including the point as to whether the plaintiffs' sale-deed was hollow or fraudulent was not necessary in the previous suit and the finding on that point would not operate as res judicata.'

After making these observations, Mr. Justice Patkar examined the contention in the previous litigation and, ultimately, he reached the following conclusion:

'I think therefore, that it cannot be said that the finding on the issue was a finding on an unnecessary issue. In fact, the plaintiffs invited the two Courts to give a decision on that issue, and as has been held in AIR 1924 PC 144 a decision invited on an unnecessary issue might operate as re judicata.'

8. It is in the light of the aforesaid authorities that it is to be determined whether the issue regarding the status of Chanbasappa vis a vis the suit property was finally decided in the previous litigation. In this connection, the defendants lay emphasis upon the fact that that was the first issue which was raised and answered by the trial Court in suit No. 54 of 1950. It was, therefore, contended that it was the principal issue which the trial Court had been called upon to decide and was so decided. I do not think that it would be proper to infer, merely from the fact that an issue has been numbered as issue number one and tried first from out of the several issues raised in the trial Court that it was necessarily the principal issue and that the decision on it was a final decision, nor could it be said from the position occupied by an issue that the party had invited the Court to give its decision on that issue first. In this connection, it is necessary to bear in mind the following passage from the judgment delivered in suit No. 54 of 1950, which has been quoted by the learned appellate Judge:

'Even if my finding on issue No. 1 is not correct, still it has come in evidence that the mother of Shivshankar and Chanbasappa and grandmother of Chanbasappa's son Malkappa was alive .....'

Therefore, there is intrinsic evidence in the judgment itself rom which one can come to the conclusion that the principal issue which the trial Court, in Suit No. 54/50, had in mind was about the question of the heirship of Saraswati and Parvati. In my opinion, there is no doubt whatsoever that that issue went to the root of the matter. If once it is held that the plaintiff is not the heir of Chanbasappa or Malkappa and that the preferential heir was Neelavva, the decision regarding the status of Chanbasappa vis a vis the suit property becomes of minor importance. After the aforesaid decision is reached, the plaintiff may think that during the life-time of Neelavva, she has no right to the aforesaid property and may acquiesce in the aforesaid part of the judgment. From this, it cannot be said that the plaintiff had invited a decision on the aforesaid point, and, therefore, was concluded by that decision for ever. In my opinion, having regard to the facts of the present case, if the plaintiff Saraswati and/or her sister Parvati had preferred an appeal from the aforesaid judgment, most probably, the appellate Court would have thrown off the claim of the plaintiff Saraswati on the ground that she was not the heir of either Malkappa or Chanbasappa, and, consequently would have come to the conclusion that it was unnecessary to take a decision as to the status of Chanbasappa vis a vis the suit property. The question for consideration is whether the plaintiff is precluded from reagitating the aforesaid question simply because she did not prefer an appeal from the aforesaid decision. The contention of the learned advocate for the defendants was that the test which should be applied in all such cases is not whether an appeal has or has not been filed. It was contended that the true test is whether an appeal could have been filed by the plaintiff Saraswati. However, it is conceded that if the appellate court had the decision of the trial Court on the issue regarding the heirship of Malkappa only and had not determined the issue regarding the status of Chanbasappa regarding the suit property, then, the matter would not have been re judicata. The argument was that as the plaintiff Saraswati did not prefer an appeal and allowed the aforesaid decision to res intact, she was precluded from re-agitating this matter. Having regard to the practice prevailing in this State, to which I have made a reference, namely, that the trial Courts in this State give their decision on all points inspite of the fact that the suit can be decided on a preliminary point. I am unable to give effect to the aforesaid argument of the learned advocate for the defendant. In my opinion, having regard to the aforesaid practice prevailing in this State, each case has got to be answered with reference to its own facts, and one of the tests which is to be applied for determining this question is to find out whether the Court, which adjudged the issue, considered the issue to be material and essential. In my opinion, having regard to the facts of the present case, and having regard to the observations made by the Court in suit No. 54 of 1950 which I have quoted in this paragraph, the issue regarding heirship was one which was regarded by the determining Court as essential and which went to the root of the plaintiff's (Saraswati's) case, and the moment an adverse finding was reached on that issue, the suit of Saraswati became premature. Under the aforesaid circumstances, in my opinion, the previous litigation must be taken to have been decided more on the ground that the suit of Saraswati was premature, and, consequently, in my opinion, the issue regarding the status of Chanbasappa vis a vis the suit property was not finally decided and the same can be re-agitated by the plaintiff Saraswati over again. Therefore, in my opinion, the conclusion which was arrived at by the learned District Judge was correct.

9. Another point appears to have been raised for the first time by the plaintiff before the learned District Judge. That point was that the plaintiff Saraswati was not represented by a proper guardian in the previous suit No. 54/50. The ground was that, on the admitted facts of the case, Saraswati's step-sister Parvati was not a co-heir with Saraswati; that, on the admitted facts, Saraswati was the sole heir of Malkappa, and, therefore, she was entitled to the whole property in suit. In the previous litigation, Parvati's husband acted as the next friend of Saraswati. It was, therefore, contended that the person who was representing the interest of Saraswati in the previous litigation was one whose interest was adverse to her interest inasmuch as he was interested in claiming that Parvati had a half share in the suit property whereas in fact she hand none. The learned District Judge has come to the conclusion that the plaintiff Saraswati was entitled to get over the effect of the aforesaid decision in suit No. 54/50, on this ground also. I do not propose to express any opinion on this subject. In my opinion, even if it is held that Saraswati was not properly represented in the previous litigation, it does not necessarily follow that she is entitled to bring a second suit and to have it tried on merits. In that continency, the only and the proper remedy of the plaintiff is to institute a suit for a declaration that the decree passed in the previous suit was not binding on her. In the subsequent litigation, it is not proper to try afresh on the aforesaid ground, the issues which had already been tried in the previous litigation. Here proper remedy is only to pray for a decree for setting aside the decree in the previous suit and for revival of that suit. However, this particular point was not raised in the trial Court and it was raised for the first time in the appellate Court. Therefore, I do not propose to express any opinion on this decision reached by the learned District Judge.

10. For the aforesaid reasons, the appeal must fail and is dismissed with costs in favour or respondent No. 1. The appellant and respondent No. 2 to bear their own costs.

11. Appeal dismissed.


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